Columns

July 2, 2025

Palestine in International Law: Equality or Discrimination?(1), by Usman Sarki

Palestine in International Law: Equality or Discrimination?(1), by Usman Sarki

The law is the child of fundamental principles of human justice””–    John Buchan

According to the Roman lawyer and senator, Marcus Tullius Cicero, “Laws are silent amidst the clash of arms”. In his day perhaps, but in our day and age, this actually needs not be so. Laws must speak loudly and clearly if our humanity is not to be diluted and made a foot stool of indiscriminate violence and the egregious abuse of human rights under the guise of war and unilaterally proclaimed right to self-defense. In his opening address to the International Criminal Tribunal at Nuremberg, on 21st November, 1945, the United States’ Chief of Counsel, Justice Robert H. Jackson, made the following declaration: “This tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories.

This inquest represents the practical effort of four of the most mighty of nations, with the support of seventeen more, to utilize International Law to meet the greatest menace of our times—aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of this magnitude that the United Nations will lay before Your Honors”.

The sentiments expressed in that historic statement still ring true in 2025, eighty years after it was first made. Justice must be served in order to deter people from committing crimes of the magnitude of those committed against nations during the Second World War, and today against the people of Gaza as this piece is being written. It is also to protect individuals, peoples and nations from the calamities of “aggressive war” which continues to be the “greatest menace of our times”, and unscrupulous violence by means of warfare at the behest of leaders of states and carried out by their organised armed forces and security agencies. Furthermore, it is aimed at the creation of conditions whereby the law, no matter how passive or indulgent it may be, still serves the purposes of peace and advances the intents of civilisation, to make the world a safer, better and more peaceful place.?

On 8th August, 1945, an Agreement was signed in London, by the representatives of the four victorious Allied Powers the Union of Soviet Socialist Republics, the United States of America, the United Kingdom and France, to establish a framework for the prosecution and punishment of Nazi war criminals for the conduct of the Second World War and atrocities ensuing therefrom. On 6th October, 1945, the same Powers signed in Berlin, the Charter of the International Military Tribunal to conduct the prosecution of indicted war criminals. Thus, by these instruments, the world’s first criminal tribunal for the prosecution of crimes against peace, crimes of war and crimes against humanity was created and conducted. Today, the precedent established by the Nuremberg Tribunal has served to inform the establishment of the International Criminal Court (ICC) under the Rome Statute, to prosecute and punish persons found guilty of crimes against peace, war crimes, crimes against humanity, genocide, ethnic cleansing and related offences.

The evidentiary minima required to indict the leaders of the State of Isreal for war crimes and other serious infractions have been established by the International Criminal Court (ICC). The three distinct parameters established by the Nuremberg Tribunal namely: Crimes Against Peace, War Crimes and Crimes Against Humanity, are likewise applicable to the conduct of Israel in its war against the people of Gaza, Raffah and other Palestinian enclaves since the operations that started following the attacks against Israel by Hamas resistance forces on 7th October, 2023, but has been preceded by a long catalogue of actions against Palestinians by Israel that went against all extant provisions of international law and relevant United Nations resolutions. Pursuant to the ICC’s indictment of the leaders of Israel, what remains now for the international community or its conscionable part to do, is to effect the arrest of the indicted persons to face trial and meet their fates in the Court.

Among the salient features of the crimes perpetrated by Israel, the following stand out prominently: that they are not time barred and are contemporary in nature and are taking place with impunity right now, that they are confined to a specific geographical location namely Gaza and adjacent territories that constitute what are known as the Occupied Palestinian Territories (OPT), that they are documented in instant news relays on television, social media and print media of the world, that they are witnessed by the entire global community that is not averse to following the crisis as they unfolded, that there was a conspiracy to achieve the ultimate and utter obliteration of Gaza through its total destruction and the deportation of the remnants of its population that has not been killed or maimed during the hostilities, that they are carried out with overwhelming and indiscriminate use of force by a determined power that has shown little or no remorse or restraint in the pursuit of total and absolute victory regardless of the consequences, that the actions of Israel are condoned, supported and even fuelled by the complicity of certain powers of the world.

The  result of any international criminal investigation into the conduct of any state and its leadership during the prosecution of war, is to elicit the “horror and contempt” of mankind. The United States’ procedure against the Nazi leaders of Germany during the Nuremberg trial was to create just such a sentiment of opprobrium against the Hitlerite regime and its operators. Where such “horror and contempt” against perpetrators cannot be demonstrated or exhibited, abuses of egregious nature against the rights of people will continue unabated, and will remain a part of the conduct of wars and conflicts without remission or moderation in their consequences. Ultimately, the purpose of criminal indictment and the trial of perpetrators of war crimes, is to repudiate the philosophy and intention of aggressive war-making such as we are seeing taking place in Gaza today.

Israel, which has been the veritable occupying power in Palestine since 1948, must be made to account for its actions against the people of that territory, whose rights, entitlements, privileges and general humanity have been grossly, systematically and deliberately infringed, violated and deprived, under the constant operations of the self-styled “security needs” of the State of Israel, and the protection of the interests of its colonial settler populations that have continuously occupied territories marked as part of the future Palestinian State under extant international law. The fact that the conduct of the Israeli government and state in the Occupied Palestinian Territories (OPT) has been judged as illegal under international law, makes it imperative that issues that are intrinsic to the conflict should be enumerated.

These factors that are self-evident and undeniable, include the use of indiscriminate, overwhelming and disproportionate force in the pursuit of Israel’s expansionist policies and aggressive removal of Palestinians, the use of deliberate force against civilians in pursuit of Israel’s purported security needs, the establishment of illegal Jewish settlements on confiscated Palestinian lands, the orchestration of organised violence by Jewish settlers against innocent Palestinians supported by Israeli political figures, the forceful eviction of Palestinians from their ancestral lands, the prolonged detention of Palestinians in Israeli prisons without charges or trials, the serial extrajudicial killings and assassinations of Palestinian leaders and activists, collective punishment meted out to Palestinians on regular basis by Israeli security forces, the systematic and deliberate destruction of Palestinian settlements, civilian properties, infrastructure, farms and other economic assets, economic blockade of the Palestinians, the withholding of taxes by Israel, the categorization of Palestinians as sub-humans, racially motivated discrimination against the Palestinians and various other degrading and dehumanising treatment of the Palestinians including against women and children.

These and others that could form the evidentiary minima against Isreal in its prolonged occupation of lands belonging to the Palestinians as well as its military campaigns against the Palestinians, should be highlighted and placed before the reading public for posterity and as witnesses to the unprecedented crimes that are being committed in the name of civilisation and progress. War is a conspiracy and the genocidal war being conducted in Gaza right now is the epitome of such a conspiracy by a power in possession of an overwhelming and unquantifiable military force against an unarmed civilian population. The prolonged and systematic siege, occupation and devastation meted out against Gaza and other territories belonging to the Palestinians by the armed forces of the State of Israel, as well as the weaponization of hunger and the willful deprivation of amenities that are essential to life, call for the repudiation of such callous and inhuman behaviour without reservations or conditions.

The insistence that the tenets of international law must be observed should ring loudly and persistently across and around the world, in order that no one is left in doubt as to the collective abhorrence and repudiation of such acts by the human family. The purported objective of the State of Israel in the present war is to bring about the total destruction of the Palestinian resistance group Hamas, and rendering it no longer capable of posing as a threat to the former in all aspects and in all areas.

However, judging from the continued conduct of the war by Israel despite the painfully negotiated ceasefire which it deemed necessary to violate and abrogate, the real intention is to achieve a few objectives that had been in the planning for a sufficiently reasonable period of time, notably to kill, displace and expel as many Palestinians as possible and to wrest as much land as can be obtained, under the guise of conflict. It is also aimed at finally burying forever the idea of a “Two-State Solution” which entailed the creation of an independent Palestinian State out of an agreed area of land that is contiguous represented by the June 1967 boundary demarcation with its capital in East Jerusalem.